California prisoner release

If we handle it right, we could have lower spending and more public safety by releasing some prisoners.

California has been running an appallingly crowded prison system for more than two decades. In effect, the legislature and successive governors decided that the right way to resolve the tension between the voters’ desire for harsher punishment as expressed in the Three Strikes initiative and their own spinelessness about raising taxes was to crowd more and more prisoners into the same number of cells.

But in this case, not spending the money is probably the right thing to do. For the cost of keeping a prisoner, we could watch not only him, but several others with a combination of drug-testing (where relevant) GPS position monitoring (enabling curfews and making it hard to commit new crimes undetected), and HOPE-style sanctioning: swift, certain, and mild penalties for every violation of conditions.

Less crime, less spending, fewer prisoners. What’s not to like?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out.
Books:
Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken)
When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The EconomistAgainst Excess: Drug Policy for Results (Basic, 1993)
Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989)
UCLA HomepageCurriculum Vitae
Contact: Markarkleiman-at-gmail.com
View all posts by Mark Kleiman

I’m far from the expert, but don’t you have to pay people to sit at a desk and track down people who don’t show? I agree the prison-industrial complex needs to slow down – I used to drive-ride past their main office to go to work – but just because it needs to slow down doesn’t mean the pieces are in place for Plan B.

Yes, you have to pay for supervision. Really fancy supervision and chasing might cost $5k per year; HOPE in Hawaii is much cheaper than that. A prison cell costs $30-$50k. Do the arithmetic. The key is being so relentless about enforcement that you force the violation rate down; compliant probationers or parolees are cheap to supervise.

Basically, it had average salaries at $64k, with an average of $15k in overtime pay. What I find interesting though, is the complexity of issues surrounding the overtime pay. Apparently they’ve had terrible staffing problems. I think being a prison guard is probably pretty tough – $65k average seems a bit high, but not unreasonable, certainly considering working conditions. Yet add in the overtime and the public is pretty pissed. But isn’t that a management issue?

Honestly, prisons just seem like an expensive enterprise, especially considering how poorly they function as “correctional facilities”.

So, lateral thinking here would point towards reducing inmate populations, and looking at the communities from which inmates largely come. I work with children from such communities, and there seems to be almost zero state involvement in pre-emptive treatment. I hear horror stories from kids about their home lives, making me question how they could wind up anywhere at all but prison.

The driving force behind keeping the state out of intervention in these communities seems less a question of efficacy, or even cost (see: willingness to spend on the much more expensive incarceration option), but one of behavioral philosophy. An agency equivalent with intact and advantaged communities is assumed that doesn’t exist. When choices are made that produce negative outcomes, the assumption is that there was a moral, not cognitive failing. So when parents raise children who are destined for prison, society assumes that it was a conscious choice. Yet it never is. No parent chooses to create dysfunctional children. Just as no one chooses to become an addict. They simply make poor choices, that then lead to negative outcomes, the consequences of which are greater than they could have possibly imagined. In the case of addiction, if addicts understood the dysfunctional patterns to which they were falling prey, they would not have become addicts in the first place. But the “ball”, so to speak, almost always got rolling long before they reached anything like adult maturation. Complex behavioral, emotional, cognitive patterns were being laid down often times in adolescence, or even earlier – sometimes in utero.

I often wonder whether social intransigence on necessary interventions ultimately has less to do with any tangible rationalization, than mainly a balking at the seemingly incomprehensible complexity of the socialization process. Especially when one hears of a horrible crime committed, there seems little solace in the notion that there is no clear line of causality, that instead the individual was caught in a complex web of events bearing down from countless angles and pressures. Our attachment to the retributive impulse seems to bark away such intricacies as “excuses”, instead of recognizing that their reality is entirely consistent with our pain and frustration over the tragedy of the crime. We can both feel the loss and anger, as well as place blame on the individual and the events which created him or her.

But much philosophical ground is lost in the word *blame*. For when we say we blame an individual, we generally mean that we are referring to a conscious state of moral choice, wherein an action’s consequences are assumed to have been evaluated in moral terms. Yet we know that so much of what drives any human is *unconscious*; every choice we make cannot be said to be thought out with full consciousness. We know that certain individuals possess more conscious awareness of their actions than others. This is what is meant by the term agency – the degree to which an individual is able to summon his or her human capital and apply it towards thought and action. We accept this as a truism with children. Their obvious cognitive limitations demand from us patience and understanding. We then assume some sort of switch is flipped in late adolescence, past the point which all actions are somehow fully-considered.

Of course there is social utility in defining some minimally arbitrary state of adulthood in which individuals are granted certain rights, as well as held to certain responsibilities. Yet this utility is quite a separate thing from actual assignment of moral culpability. Our criminal justice system is designed to establish whether a crime was committed, not why. Obviously, this would be too great a task. Our understanding of human nature is vague at best, and no where near enough data could exist to determine anything like definitive culpability. What’s more, *blame*, to use that nebulous verb, would immediately begin to extend outwards, necessarily incorporating family members, friends and all relevant formative social interactions – clearly a social inconvenience to put it mildly.

But what it seems we can do is draw a larger circle of blame – or shall we say accountability? – around the perpetrator. Into this we inevitably include ourselves, along with our sense of social solidarity. Unfortunately, we must also take responsibility for some of the blame. We cannot simply look down upon the criminal, using him as a reference point for our own sanctimony. We must be drawn to him, to meet him at his level and walk with him towards his fate, whatever utility we find appropriate in our social designs.

Whoever does this will be crucified as “soft on crime” even as crime rates drop and violent offenders stay behind bars. Even in relatively placid vermont, a plan to save prison money by offering job training, drug treatment and other programs so that parolees don’t re-offend has been push-polled by the usual suspects as “putting more criminals out on the streets”. (Apparently the notion that someone who doesn’t re-offend isn’t actually a criminal any more is past comprehension.)

Paul, the problem with that argument is that many states already have taken significant steps to reduce their prison population, including those you’d be more likely to put into the conservative category, and there does not appear to have been any backlash.

As for Mark’s point that this could lead to significant and useful reforms – this is true. But the opinion doesn’t actually order the release of prisons, as I read it, but only that the population of the state system be reduced. One option, that Governor Brown had been trying to push is moving prisoners into the county system, including (I believe) those in prison for technical parole violations. These are the people who would be most appropriate for the kinds of reforms Mark mentions, if I’m not mistaken. And Brown is using the ruling to renew his efforts for this shift. See here: http://blogs.sacbee.com/capitolalertlatest/2011/05/jerry-brown-calls-prison-rulin.html

I for one think that if people were given the choice of 1) paying for keeping people in prison for parole violations, low level drug offenses and the like or 2) big education cuts, the CA voters would do the right thing. Unfortunately, it looks like they are going to get #2 without much debate.

California can achieve 26,000+ of the 33,000 releases merely by letting go those imprisoned for possession and/or sale of controlled substances. And, kin fact, one suspects that the state will heavily focus its releases among them (as opposed to the murders, rapists, etc.)
Prof. Kleiman might not endorse such an effective de-criminalization of drugs … but one doubts that the state’s citizens would ever notice.

Your work has convinced me and I would love to see the marginal prisoner (or even the marginal 33,000 prisoners) shifted to an intensive parole system along the lines of HOPE, possibly with GPS, etc.

However I thought I’d heard you argue that for a variety of reasons such programs have to be scaled up slowly or they will fail. Any idea how quickly the prisoners have to be released as compared to how quickly an intensive parole system could be scaled up? Is it possible to slow the release of prisoners enough to allow such a program time to scale up?

I’m all in favor of awful retribution, even if it fails to give me any frisson. Problem is, a lot of the ‘crimes’ that put you in prison have no relation to retribution; There’s no “tribution” involve to “re”, if you get my drift. No eye to take an eye for. Really, for a lot of these things we should release the people even if we had room to spare…

While there is no doubt that there needs to be far greater effort to rehabilitate and properly reintegrate those prisoners being released from prison, the real issue is in effectively reducing the volume of “intake”, the “pipeline” going into jail and prison. I have been a prosecutor for 25 years, unionized the DA’s office, and co-wrote the Victims Bill of Rights “Marsy’s Law” in 2007. My current dedicated effort is an initiative designed to address the “overcriminalization” of our young offenders and a pardon process for past offenders who meet criteria demonstrating their rehabilitation. I was advised ( B Maynard) that your insights would be of great value in constructing a new paradigm for prosecuting crime. If you would consider meeting with a prosecutor to drive felony conviction rates down dramatically in California, I would be honored to return to my “alma mater” UCLA to discuss my methodology, known as “Reform First”.

Steve Ipsen
UCLAW Class of ’86
I can be reached at 213 700 4133.

P.S. Further…….the fault lies with prosecutors and the false presumption of the criminal justice system that the way we prosecute crime makes sense. It does not. The longstanding “tough on crime” model of prosecution in California assumes there is some value in getting high felony conviction statistics. There is not. The only value of the label “felon” applied to criminal offenders, is its ability to deprive the first time offender of any ability to participate in the economy. The felony label blocks most paths to education, student loans, work study, etc. Even if education is somehow paid for, many licenses, and occupations are blocked to felons. This leaves nothing but low paying jobs, and even these are unavailable to most because they must write “felon” on their job application. The rejection, and unemployment results in depressions, drug use and further crime by far too many young offenders. As a prosecutor I can tell you with certainty that the current methodology is actually generating criminal activity by blocking the economic opportunities of low level first time offenders thereby leaving crime as an almost unavoidable “occupation.”

Brett: Perhaps we should punish drug-dealers’ reckless endangerment of public health by offering to sell them a beer or a burger?

The exact contents of this offering could depend upon whether they had surreptitiously cut their drugs with chalk, bleach powder, or dried dogshit; in these cases, some encouragement to consume it might be necessary, depending on which beer and burgers they were already in the habit of paying for. For perfect justice, the surprise ought to occur in a freely-bought product at an unpredictable moment.

But in general I think that vindictively precise justice is a vastly unwise power to wish on any court, because pretty quickly it is going to end up acting like Oberon’s, and crying out for the application of cold iron. Not much justice in prospect there, however it turns out.

Ah, Gray, I presume that in your world there are no malum prohibitum offenses. Everybody who breaks a law is evil, evil, EVIL. Too bad that’s not the world most of us live in, we could be more comfortable about the number of people rotting in prison.

Brett, you have me exactly turned about: I really do think that selling a pot dealer a beer is a wholly appropriate punishment, and that malum prohibitum offences are much more likely to be evil – evil – EVIL! – than the poor sucker chucked into a dungeon on the pretext of having violated some arbitrary prohibition or other.

Bastards who adulterate their drugs with more noxious crap really are evil, however; and although I don’t trust a court with the power to visit on them the precise fate they have earned, I stand by my fantasy as to what that fate would be.

On re-reading, I have to admit that my earlier comment must have come over as sarcastic as all hell, absent prior knowledge of my triply-unprintable opinion of the War on Sex’n’Drugs’n’Sausage Rolls.